Case law

  • Case Details
    • National ID: link
    • Member State: Germany
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 18/12/2012
    • Court: Federal Court of Justice
    • Subject:
    • Plaintiff: Unknown (Husband)
    • Defendant: Unknown (travel agency (intervener) and crusie line company)
    • Keywords: package travel, right of cancellation, travel
  • Directive Articles
    Package Travel Directive, Article 2, 1.
  • Headnote
    (1) An agreement to participate in a cruise is a travel package pursuant to §651a Abs. 1 BGB.

    (2) If a traveler's journey to the cruise departure point is made impossible or substantially difficult due to unforeseeable, extraordinary circumstances (force majeure, act of God), the traveller may cancel the cruise pursuant to §651a Abs. 1 BGB even if the journey to the cruise departure point itself was booked separately and is not part of the travel package.
  • Facts
    The plaintiff booked a cruise at defendant's travel agency for him and his wife. The cruise was to begin on April 19, 2010 and he paid a $420 deposit. He booked flights at a later date to get from his home to the cruise departure point in the USA. In April 2010, a volcano on Iceland erupted and ejected volcanic ash, which caused enormous disruption to air travel across western and northern Europe. The plaintiff and his wife could not fly to the USA and therefore could not go on the cruise.

    The plaintiff cancelled the trip in writing on April 18 due to extenuating circumstances (circumstances of force majeure). The travel agent informed the plaintiff that the cancellation costs for the unused cruise are 90% of the agreed upon price. The plaintiff refused to pay and the cruise company/provider paid this amount to the travel agent. The plaintiff sued for a refund of his deposit and the defendant countersued for the 90% of the agreed upon price that it paid to the travel agent.
  • Legal issue
    The court held that the plaintiff may cancel the travel package contract because unforeseen circumstances - the temporary flight ban due to the Icelandic volcanic ash cloud - prevented him from getting to the cruise departure point. The fact that the plaintiff booked his flight to the cruise departure point separately does not preclude his right to cancel the cruise pursuant to §651.
  • Decision

    (1) Is an agreement to participate in a cruise, a travel package pursuant to §651a Abs. 1 BGB?

    (2) If the plaintiff's journey to the cruise departure point is made impossible or substantially difficult due to unforeseeable, extraordinary circumstances (force majeure, act of God), may the traveller cancel the cruise pursuant to §651a Abs. 1 BGB even if the journey to the cruise departure point itself was booked separately and is not part of the travel package?

    URL: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=63711&pos=0&anz=1

    Full text: Full text

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  • Result
    The plaintiff's appeal was granted - the lower appellate court decision was reversed and the trial court decision was reinstated.